ARUN KUMAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) HEARD learned Counsel appearing for the petitioner and learned Counsel appearing for the respondents on the interlocutory application, bearing I.A. No. 1001 of 2008 wherein prayer has been made to direct the respondent No. 2 to make payment of salary with effect from 25.11.2004 till date to the petitioner and to post the petitioner against the vacant and sanctioned post.

(2.) LEARNED Counsel appearing for the petitioner submits that while the petitioner was posted as Assistant Engineer in Minor Irrigation, Sub -Division, Khunti, Ranchi, Urban Development Department, made a request from the Water Resources Department, Jharkhand, to make services of at least five Assistant Engineers and three Executive Engineers available to the Department for various developmental works. Accordingly, services of the petitioner along with other persons were transferred to Urban Development Department, vide notification No. 4239 dated 14.10.2004 and accordingly, the petitioner and others joined in the Urband Development Department on 19.10.2004. Subsequently one Brahmachari Rajendra Prasad Singh, Assistant Engineer posted in the Water Resources Department was deputed in the Urban Development Department without there being any requisition, still his joining in the Department was accepted on 10.11.2004. However, when the petitioner was waiting for posting, Establishment Committee of the Urban Development Department took decision on 10.12.2004 for posting of only four Assistant Engineer and one Executive Engineer against the existing vacancies of seven posts for Assistant Engineer and consequently, services of the petitioner and one another was sent back to the Water Resources Department, though other two persons, who joined subsequent to the petitioner, were retained in the Department and were also given posting and that decision returning the service of the petitioner to its parents Department was never placed before the Departmental Establishment Committee nor it was ever approved by the Departmental Minister and therefore, the petitioner filed writ application before this Court, vide WP (S) No. 328 of 2005 where stand was taken by the Urban Development Department that as there was no vacancy on the post of Assistant Engineer, services of the petitioner and one other was sent back. In the meantime, the petitioner was transferred to the vacant post of Assistant Engineer in Design Division No. 2, Medininagar which order was also illegal but this Court putting reliance on the statement made in the counter affidavit, dismissed the said writ application. Against that order, when LPA was preferred it was also dismissed and then, SLP filed before the Hon'ble Supreme Court also got dismissed. Thereafter the petitioner in compliance of the order submitted his joining before the Executive Engineer, Design Division No. 2, Medininagar on 1.8.2005 but as there was no such vacancy, the Executive Engineer, Design Division No. 2. Medininagar intimated the matter to the Chief Engineer, Water Resources Department. Thereupon the petitioner filed detailed representation before the Secretary, Water Resources Department and gave his joining in the Headquarters on 4.8.2005 requesting therein to place him against vacant post. Thereafter the petitioner came to know that the Urban Development Department has requisitioned the services of the five Assistant Engineers and subsequently 20 Assistant Engineers for their posting in the Urban Development Department, though petitioner's services had been returned a few months before on the ground that vacancy does not exist in the Urban Development Department, and, therefore, the petitioner filed Review petition before this Court but that was again dismissed and even SLP filed against the order passed by this Court was also dismissed but while dismissing, the Hon'ble Supreme Court did observe that the matter relating to the salary due to be paid to the petitioner since December, 2004 be looked into by the Department. Thereafter the petitioner filed several representations lastly on 20.6.2007 before the concerned respondent to issue a proper and valid posting and to make payment of the salary but when nothing was done, the petitioner filed again a writ application before this Court, vide WP (S) No. 4325 of 2007 which was disposed of directing the respondent to consider the representation of the petitioner in the light of the order passed by the Apex Court but still no order was passed and, therefore, the petitioner has filed this writ application praying therein to recall/set aside the order passed in WP (S) No. 328 of 2005 as the writ application was dismissed when false statement was made that no post exists in the Urban Development Department and also for quashing the order dated 30.9.2007 under which intimation was given to the petitioner that he did not Join on the post though post fell vacant subsequent to joining of the petitioner in Design, Division No. 2, Medininagar.

(3.) HAVING heard learned Counsel appearing for the parties and taking into consideration the entire facts and circumstances, it does appear that when the services of the petitioner was returned to the Water Resources Department, writ application was filed but that writ application was dismissed having regard to the statement made on behalf of the respondent that there was no vacancy in the Urban Development Department but subsequently, as per the case of the petitioner when the petitioner came to know that vacancy was very much there, this writ application has been filed for recalling the order passed in the earlier writ application, bearing WP (S) No. 328 of 2005. Further it appears that after the services of the ' petitioner was returned to the Water Resources Department, he was transferred to Design, Division No. 2, Medininagar by the Chief Engineer, through, according to the petitioner, the Chief Engineer, Water Resources Department is never competent to pass order relating to transfer, still the petitioner came to join at Madininagar but the post was never vacant and as such, the petitioner did join before the Secretary and made representation relating to the posting and to make payment as the petitioner was made to suffer on account of illegal order and also by swearing wrong affidavit before this Court. However, it is the stand of the respondent that when the Chief Engineer came to know that the vacancy is not there at Medininagar, one Assistant Engineer posted from before was transferred for creating vacancy and the petitioner was asked to join but the petitioner never joined in spite of notice being published but this stand seems to have been taken for the first time in the reply to the interlocutory application, though such stand was never taken at any occasion, though at the relevant point of time when LPA No. 588 of 2005 and even WP (S) No. 4325 of 2007 filed by the petitioner was pending and it is quite possible that the petitioner on filing representation before the Secretary, Water Resources Department for his posting and also for payment of the salary may be awaiting for the order but as the order was not passed, he may be quite ignorant about the notice published in the Newspaper.